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Judgment
G. Mehrotra, C.J.—These eight petitions are filed on behalf of the teachers of the primary schools against the order of the discharge from service of the Petitioners by the Secretary of the School Board. In some of the cases the order has been passed by the Assistant Secretary, State Board constituted under the provisions of the Assam Elementary Education Act, 1962-Assam Act No. XXX of 1962 (hereinafter called ''the Act'').
Mainly the point raised by the Petitioners in these cases is that the Secretary, School Board or the Assistant Secretary, State Board constituted under the Act had no authority under the Act to terminate the services of the Petitioners. It was secondly contended that the Petitioners are holding civil posts under the State and thus their discharge was in violation of the provisions of Article 311(2) of the Constitution. In regard to the second point raised two questions have been canvassed before us. Firstly, it is urged by the Petitioners that though under the Act the Petitioners'' service is taken over by the State Board which is an incorporated body under the statute, in effect it is a department of the State of Assam. Secondly, it is urged that the Petitioners were permanent employees and thus the termination of their services prima facie constituted their dismissal within the meaning of Article 311 of the Constitution. Even in the cases where the appointment was temporary, as they were discharged from service on the ground that they did not possess the necessary educational qualification prescribed by the School Board, their dismissal was on the ground of inefficiency and thus they were entitled to a reasonable opportunity under Article 311(2) of the Constitution, which admittedly was not given to the Petitioners.
It is necessary to refer to the back-ground and the earlier Acts which led to the passing of the Assam Elementary Education Act, 1962.
In the year 1947 the State of Assam passed an Act known as the Assam Primary Education Act, 1947 (Assam Act 13 of 1947) with a view to make provision for the development of the primary education in the State. This Act was repealed by the Assam Basic Education Act, 1954 (Assam Act 26 of 1954). The preamble of the Act of 1954 shows that it was passed with a view to provide for development, expansion, management and control of basic education and with a view to introduce gradually universal, free and compulsory basic education in the State. Section 2(4) of the Assam Basic Education Act, 1954 (hereinafter called ''the Act of 1954'') defines ''basic education'' as meaning education in such subjects and upto such standards as may be prescribed and Section 2(5) defines ''basic school'' as meaning a school which is recognized by a School Board under this Act, and shall include a pre-basic school, a junior basic school or a senior basic school. Section 3 of the Act of 1954 provides for the constitution of a State Advisory Board for Basic Education, which shall be a body corporate with perpetual succession and a common seal. It was competent to acquire and to hold movable and immovable property. The duties and functions of the State Board are set out in Section 9 of the Act of 1954. Section 16 of the Act of 1954 makes provision for the constitution of a Regional Board for basic education for each region of a District. This Board is known as ''School Board'' and is a body corporate with perpetual succession. The duties and functions of the School Boards are set out in Section 24 of the Act of 1954 and Sub-section (3) of Section 24 expressly confers powers on the School Boards to appoint and punish basic school teachers and attendance officers. Thus the scheme of the Act shows that the management of the basic schools was entrusted to the School Boards constituted in different regions and the State Advisory Board was a Central Board for the purpose of advising the State Government in the matter of the educational policy of the basic schools.
The Act of 1954 was repealed by the Assam Elementary Education Act, 1962 (Assam Act 30 of 1962). The preamble sets out the purpose which is similar to that of the Act of 1954. ''Elementary education'' has been defined in Section 2(h) of the Act as meaning education up to such class or standard, not beyond the eighth class or standard, as may be prescribed and ''elementary school'' has been defined in Section 2(i) as meaning a school where elementary education is imparted. u/s 3 of the Act the State Government was authorised to constitute a State Board for Elementary Education to advise Government for the development, expansion, management and control of elementary education in the State. The State Board shall be a body corporate with perpetual succession and a common seal, and shall sue and be sued by the name of the State Board for Elementary Education. It was competent to acquire and to hold movable and immovable property, to transfer any such property so held by it, and to do all other acts necessary for carrying out its duties and functions under this Act and the rules made there under. The functions of the State Board are set out in Section 10 as follows:
(a) to lay down principles for allocation of grants for carrying out the purposes of this Act, to the local authorities ;
(b) to lay down procedure and conditions and to hold such tests as may be necessary for recruitment of teachers of elementary schools on such terms and conditions of service as may be prescribed;
(c) to lay down conditions for recognition, expansion and amalgamation of elementary schools'' and opening of elementary schools; and
(d) to do any other act which the State Board, considers necessary for carrying out the purposes of this Act fully and effectively.
The State Board has to perform its junctions in'' accordance with the rules of business Iramed by it. u/s 18(1) of the Act the Slate Board is authorized to constitute an advisory Committee lor the purpose of appointing teachers u/s 14(3)(iii) and salaried attendance authorities u/s 47 consisting of three members in each Deputy Inspector''s Circle of the State. u/s 16(2) the Assistant Secretaries of the State Board are also to be the members of the Advisory Committee in addition to three members of the Committee under Sub-section (1) above. Section 23 then provides Euro the creation of the local authorities which will have the power of management of elementary schools. The relevant portion of Section 34 reads as follows:
As soon as this Act comes into force.
(1) all money deposited in the hands of and held by the State Advisory Board for Basic Education constituted u/s 3 of the Assam Basic Education Act;, 1954, on the date on which the State Board established under this Act takes charge of office, shall be transferred to and be held by the State Board ;
(b) all teachers and other employees of Schools maintained by School Board shall be taken over by .the State Board:
Provided that the total emoluments of these employees at the time they are taken over, shall be protected and their existing seniority shall be maintained...
Section 38 of the Act provides that all teachers existing or to be appointed in any Elementary School recognised under this Act, except in the case of the Autonomous Districts, shall be deemed to have been employed by the State Board. Section 54(1) gives power to the State Government to make rules for carrying out the purposes of the Act, Section 54(2)(i) expressly gives powers to the State Government to make rules for laying down the terms and conditions of service of teachers of Elementary Schools including conduct and discipline of teachers and Section 54(2)(ii) expressly gives powers to the State Government to make rules for laying down the powers and -duties of the Secretary of the State Board required to be prescribed u/s 13. Section 55 which is the repealing and saving section, reads as follows:
(1) On and from the date on which this Act comes into force the Assam Basic. Education Act 1954 shall be repealed.
(2) Notwithstanding the repeal all authorities constituted, appointments, rules, orders or notifications made under ''the said Act shall be deemed to be constituted or made under this Act, and continue to function or to be in force until actions under the provisions of this Act are taken.
(3) Any of the provisions of the Assam Municipal Act, 1956, which is repugnant to any of the provisions of this Act shall stand repealed.
In exercise of the powers conferred by Section 54 of the Act the "Assam Elementary Education Rules, 1983", (hereinafter called ''the rules'') have been framed by the State Government. Rule 16 of the rules provides for the constitution of the Advisory Committee. Rule 18 lays down in detail the duties and functions of the Advisory Committee. Powers and duties of the Assistant Secretary as enumerated in Rule 19 relate'' to the keeping of accounts, incurring of expenditure and maintaining the service books and other service records of the teachers. Rule 26 runs as follows:
(1) The upper age limit for appointment as a Teacher in an elementary school shall be twenty five years as on 1st January of the year in which the appointment is made. A person above this age limit, in case of persons not working in any educational institution, shall not ordinarily be appointed:
Provided that in exceptional cases persons above the age limit, but not above thirty years may be appointed with previous approval from the Secretary, State Board.
(2) A teacher and an Attendance Authority holding a substantive post shall be on probation for a period of three years after which he may be confirmed subject to the usual conditions of satisfactory service:
Provided that a temporary teacher shall be entitled to such increments in the scale of pay as he earns by his service, subject to satisfactory service.
(3) The date of compulsory retirement of the employees of the State Board shall be the date on which they attain the age of fifty-five years.
Retired servants shall not be re-employed except on the order of the Secretary, State Board in public interest.
Rule 27 provides for the provident fund and retirement benefits and Rule 29 deals with the leave of the teachers. Rule 30 roads as follows:
In respect of conduct and discipline, the teachers and all other employees of the State Board, shall be governed by the Government Servants'' Conduct Rules.
From the examination of the provisions of the Act and the rules it is evident that no express power of terminating the services of the teachers has been conferred on either the State Board or any of its officers. The age of retirement has been fixed under the rules to be fifty-five years and thus normally an employee of the State Board will retire on attaining the age of fifty-five years and till then he has to remain in service. It is also not the case of the parties that there is any written contract between the Petitioners and the State Board or its predecessor embodying the terms and conditions of the service including the power to terminate the services after giving due notice or on their misconduct.
The State Board is a statutory body and the powers of the statutory body are subject to the statute which has constituted such a body and it has to be exercised in conformity with the said statute, The relation between a statutory body and its employees is governed by contract, and in the absence of any statutory provision or special contract, by the general law of master and servant. Reference in this connection may be made to the case of S.R. Tewari Vs. District Board Agra and Another,
The first contention of the Petitioners is that the Assistant Secretary had no power to terminate the services of the Petitioners. The State Board is a statutory body constituted under the Act and u/s 34(2) of the Act the teachers of the schools maintained by the erstwhile School Board are taken over by the State Board and by Section 38 the existing teachers in any elementary school will be deemed to have been employed by the State Board. Reading these two sections together it is clear that the existing teachers are the employees of the State Board. There is the relationship of master and servant between the State Board and the Petitioner. Even under the general law thus the power to terminate the services of the employees, rests with the master and unless it can be shown that the Assistant Secretary was empowered to act in the matter of termination of the services on behalf of the State Board, the termination of service by the Assistant Secretary will be ultra virus of its powers. It will not ''be a termination of service by the master but by a third party. It is not the case of the opposite parties that the order of discharge passed by the Assistant Secretary was even ratified by the Board in the manner prescribed by the Act itself. The rules lay down the procedure to be followed by the State Board whenever it acts and it is not the case of the opposite parties that there was any resolution passed by the State Board terminating the services of the Petitioners. The only question which, therefore, requires consideration is how far the Assistant Secretary was empowered under the Act to terminate the services of the employees of the State Board. The State Board being a body corporate, has to act through its officers or in a manner provided by the rules and thus certain powers may have to be delegated to its officers by the Board or that the statute may provide that certain powers of the State Board will be exercised through its officers and it has to be seen whether the statute had laid down that the power of termination of service vesting in the State Board will be exercised through its officers. As I have already pointed out, by virtue of the fact that the Petitioners are employees of the State Board, the power to terminate their services in the absence of anything to the contrary in the Act should necessarily vest in the Board itself.
Reliance is placed by the counsel for the State on Section 14 of the Act in support of the contention that the power of termination has been conferred by the Act on the Assistant Secretary. Section 14(1) lays down that subject to the provisions of Section 26 the Deputy Inspectors of Schools, by virtue of office, shall be the Assistant Secretaries of the State Board and Section 14(3)(iii) provides that the Assistant Secretary shall exercise powers and perform duties as follows in his own jurisdiction:
to appoint teachers in recognized schools on the advice of a Committee constituted by the State Board u/s 16 and transfer them as necessary and also grant such leave, other than casual leave, to them as may be admissible.
This Sub-section does not in express terms confer any power on the Assistant Secretary to terminate the services of an employee.
The contention of the State is that the power to appoint carries with it the power to dismiss under the General Clauses Act and thus the power of appointment conferred u/s 14(3)(iii) on the Assistant Secretary carries with it the power to dismiss. Section 16 of the General Clauses Act 1897 provides:
Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.
Section 16 of the General Clauses Act embodies the Rule 1 construction and the question whether or not it applies to the provisions of the Assam Elementary Education Act, 1962 would depend upon the subject-matter, context and the effect of the relevant provisions of the said statute. The scheme of the Act will have to be examined in order to find out whether the provisions of Section 16 of the General Clauses Act will apply to the provisions of Section 14 of the Act. The provisions have been set out in the earlier part of my judgment in detail. The object of the Act is to provide for the development, expansion, management and control of elementary education. The State Board is to be constituted on the coming in force of the Act with a view to advise the Government for the achievement of the objects of the Act set out in the preamble. The power o� the State Board is to do any act which it considers necessary for carrying out the purposes of the Act. The teachers are the employees of the State Board. u/s 14 of the Act no express power has been conferred on the Assistant Secretary to terminate the services of the teachers. The power, of appointment which is conferred on the Assistant- Secretary is to be exercised on the advice of the Advisory Committee constituted u/s 16. It deals expressly with the power of granting leave and transfer of the teachers. Thus by applying Section 16 absolute power of dismissal is conferred on the Assistant Secretary, though even the power of appointment under the Act is to be exercised on the advice of the Advisory Committee. under Rule 18(5) the Assistant Secretary is enjoined not to make any appointment of teachers and attendance authorities ordinarily except on the advice of the Advisory Committee. All cases, however where, an appointment is made for emergent reasons without the recommendation of the Advisory Committee, shall at once be reported to the Secretary, State Board for his approval. All these provisions show that no absolute power of appointment has been conferred on the Assistant Secretary and if Section 16 of the General Clauses Act was meant to be applied in construing the appointment under the provisions of the Act, it would be conferring an absolute power of dismissal which will be inconsistent with the scheme and the context of the Act. Even in cases where a teacher is to be discharged on disciplinary grounds, the Assistant Secretary would be empowered u/s 14 to terminate the services of the teachers without giving them reasonable opportunity to explain their conduct, which could not have been intended by the statute.
Mr. Pathak then contends that the order of removal of the Petitioners was passed in accordance with the circular issued on the 15th December 1962 from the Joint Director Public Instruction and Secretary State Board for Elementary Education, Assam, to the Secretary, School Board. This argument assumes that the act of termination was in effect the act of the State Board as it was done in pursuance of the circular issued by the Secretary of the State Board and not in the exercise of the power conferred u/s 14 of the Act. If this argument is accepted, then the order of termination cannot be held to be valid as the State Board which is a statutory body, has not acted in accordance with the provisions of the Act and the rules which lay down the manner in which a statutory body has to act.
He has then contended that there were certain earlier circulars issued before the coming in force of the Act under which the Assistant Secretary has acted. He has relied upon Section 55 in support of the contention that the circulars issued under the earlier Act of 1954 were still operative. As I have already pointed out, the question is one of the power and not whether the power was exorcised in pursuance of any circular issued under the Act of 1954 or under the Act of 1962. If the Assistant Secretary had no power to terminate the services of the teachers, the fact that he gave effect to certain circular issued under the Act of 1954 will not clothe him with any such authority.
The next contention of the Petitioners is that as they are civil servants employed under the State, Article 311 of the Constitution is attracted. It is urged that though the State Board is a body corporate constituted under the Act, in fact it is a department of the Government and as such the teachers come within the ambit of Article 311 of the Constitution. I have already dealt with the provisions of the Act and the rules in details and the counsel for the Petitioners emphasised the fact that under the provisions of the Act the entire control and management of the school rests with the State Government. All the elementary schools are under the control of the State Board. The officers of the Department of Education are the controlling authority. To the employees of the State Board including the teachers the Government Servants'' Conduct Rules apply. The Provident Fund and the retirement benefits are to be given to the teachers in accordance with the decision of the Government. The teachers are to subscribe to the provident fund and the provident fund matters are to be governed by the same rules which govern the Government servants, they have the right to get leave and leave salary as that of the Government servants. The contention of the State is that the State Board is a body corporate created by the statute. It has an independent existence and it is not a department of the Government.
In the case of Ram Babu Rathaur Vs. Divisional Manager, Life Insurance Corporation of India and Others, it has been held by the |Allahabad High Court that Article 311 of the Constitution does not apply to the employees of the Life Insurance Corporation of India, as it is not a department of the Government but an autonomous body. In the case of Baleshwar Prasad Vs. Agent, State Bank of India, it has been held by the Patna High Court that an employee of the State Bank of India is not a civil servant of the Union Government and thus Articles 311 and 320 of the Constitution have no application to; this case. In the case of V. Ramiah Vs. State Bank of India, the matter has been exhaustively dealt with and it has been held that a cashier in the former Imperial Bank of India who was taken over into the services of the State Bank of India, was ''not governed by Article 311 of the Constitution. In the case of G. Narayanaswami Naidu Vs. C. Krishnamurthi and Another, the question which came up for consideration was whether a corporation like the Life Insurance Corporation of India was a department of the Government in the context of Article 191(1)(a) of the Constitution and it was held that it is not a department of the Government. There were certain criteria laid down in that case for judging whether the Corporation is a department of the Government, namely, the incorporation of the body, the degree of control exercised by the Government, the degree of dependence of the Corporation on the Government for is financial needs and the functional aspects of the Corporation. In this connection the following passage in the principles of administrative law by Griffith and Street was relied upon:
It may be said that there are several criteria which from time to time the Judges have thought relevant. These include: Is the body performing tasks formerly carried on by private enterprise? Mersey '' Docks and Harbour Board Trustees v. Gibbs (1866) 12 L 93 at p. 107. To what extent it is subject to ministerial control, for example, has it independent discretionary powers-Metropolitan Meat Industry Board v. Sheedy 1927 A C 899 at p. 905. Must it consult a Minister before it acts Can a Minister give his direction Is its function one which has historically been regarded as governmental Lane v. Cotton, (1701) 1 Ld R 646. Is it incorporated Is it subject to Government audit ? Is its authority general or local. .. . Is it a mere domestic body Rowell v. Pratt 1936 2 K B 226. Is execution against its property allowed Although Tamlin v. Hannaford 1950 1 K B 18 does not lend particular support to the view it is submitted that the degree of control exercised by the Government over the body ought to be the determining fact.
The following passage in an article captioned ''Nationalisation in Legal Perspective'' in ''The Current Legal Problems'' 1952, by Professor Scammel regarding the exact constitutional position of the Public Corporations created for carrying on nationalized undertaking may also be referred to:
The exact constitution position of the national corporation in charge of the nationalized undertakings has not yet been fully settled. That question is likely to be of some practical importance in connection with the extent to which judicial control can be exercised, it has been suggested that they fall somewhere between Government department and local authorities. On the one hand 1950 1 K B 18 decided that they do not rank as Government department; whilst, on the other hand, the are more closely linked with the Government through their parent Minister than are local authorities whose members are elected and who are not subject to receive general directions from a Minister. It is, at any rate, now clear, that being neither servants nor agent of the Crown and their functions not being such as fall within the province of Government, they do not share in the privilege and immunities of the Crown. They are, however, public authorities, and in addition, many of them are given special statutory privileges...
But in the view, however, which we have taken about the power of the Assistant Secretary, it is not necessary to go into this question in details.
Mr. Pathak had also contended that the State Board being an autonomous statutory body, it cannot be treated to be a public authority and thus no writ can be issued under Article 226 of the Constitution against such a body. We do not think that there is any force in this contention. The case of V. Ramiah Vs. State Bank of India, to which 1 have already referred, has exhaustively dealt with the question of the public authority and we are in full agreement with that view.
Reference may be made to the case of McClelland v. Northern Ireland General Health Services Board reported in 1957 2 All E R 129. In this case the order of termination passed by the-Northern Ireland General Health Services Board was held to be invalid. The conditions of employment were incorporated in certain rules approved by the-Ministry and they were known as September condoms and it was held that the termination by the and was not in accordance with the provisions of is September conditions. It was held that the employment was not a temporary employment and the played was not liable to be dismissed from service. I the result, therefore, we allow these petitions and direct that the orders terminating the services of the Petitioners passed by the Secretary of the School oared and the Assistant Secretary, State Board are quashed.